The State, the White Collar and the Criminal Liability of Corporations in Light of the Public Ministry report for 2019

The annual report of the Public Ministry has been recently published, analyzing various areas of criminal offences made by both individuals and legal entities, providing numbers, data and information that shall grant a macro-view of its activity from 2019.

In a previous article[1], we focused on breaking down and presenting relevant aspects regarding the criminal liability of the corporations under the Romanian criminal law. While that article focused on a more elaborate presentation of the conditions under which corporations may be criminally liable, the scope of this review is to present the evolution of the prosecution process of the legal entities throughout 2019.

As the criminal liability of corporations is a topic still to be grasped by the national authorities, being a rather young and in development sector of the criminal and prosecution area, the main point of this retrospective comparison is to present and analyze the evolution and the effectiveness of the Romanian prosecution process in order to point out the main ideas regarding the progress that has been made in the fight against corruption and organized crime.

The Public Ministry Report from 2019 shares a set of detailed information, reporting a total of 1,013 legal entities being investigated, with a number of 239 being indicted for the following crimes:

Crimes against patrimony – 15 cases, down by 65.9% from 44 in 2018;

Corruption and malfeasance offences – 4 cases, down by 50% from 8 in 2018;

Crimes provided by special laws – 177 cases, up by 12% from 157 in 2018.

As it can be noticed, in contrast with 2018 there is a shortage in the numbers of corruption offences and in the crimes against patrimony sector, with the most significant change being in the crimes against patrimony where only 15 cases have been reported from 44 in the previous year.

On the other hand, there is an increase in the number of the legal entities that have been prosecuted for crimes provided by special laws, with a total of 177 cases from 157 in 2018; note that such special laws regulate some of the most serious crimes, such as tax evasion, money laundering and EU funds frauds.

Even though these numbers may vary for particular reasons, the total number of legal entities that have been investigated in 2019 went up to 1,013 from 807 in 2018, but with 239 being indicted for crimes. This represents just a slight variation from the numbers provided for 2018 when 242 legal entities were indicted.

The peak was in 2015 when 2,073 legal entities were investigated and 319 were indicted. Only in 2016 more corporations were indicted (i.e. 487) and starting from this point, the numbers went down and settled, at least for the moment, to the current past years’ values.

Starting with 2016, the number of indicted corporations has been significantly lower, but even if the data reported in 2019 is almost at half from the numbers reported in 2016, the total number of the companies that are being investigated remains constant.

And, if we are looking at the past 10 years, we notice that the number of investigations against the corporations has been constantly growing, going from 29 corporations being indicted in 2010 to 239 in 2019.

So, looking at the past 10 years, it becomes clear that more and more corporations are being investigated for crimes committed in the financial-economic area.

Although the numbers may appear relatively small, the Romanian State is interested in running programs that could help prosecutors improve their ability to better conduct the investigations. Among such programs, the Norwegian Financial Mechanism 2014 – 2021 – “The Fight Against Corruption and Organized Crime” can be mentioned. The main focus of this program is to better train prosecutors, judicial police officers and other specialists by participating at over 40 courses that tackle specific topics such as: how to combat the organized crime and migrants smuggling, how to combat the public acquisitions fraud, the fight against the low corruption and the crimes against the environment, tax evasion and other financial-economic crimes. By the end of the courses, a guide for good practices for investigating the white-collar criminal liability and in conducting such interviews shall be established.

All in all, the criminal investigation of the corporations remains a hot topic for the national authorities, which are investing more time and money in training the persons conducting the investigations and adapting the techniques to the specifics of this criminal area.